Appeal No. 96-1898
Application No. 07/921,826
3 through 10 under 35 U.S.C. 103 over Ferrer and Joseph
because, in our view, the examiner has not established a prima
facie case of obviousness with regard to the claimed subject
matter. The responsibility lies with the examiner, in the
first instance, to establish obviousness and we are not
convinced, from the examiner’s reasoning, that Joseph does,
indeed, suggest the claimed step of “maintaining a method
entity...” For us to assume that it does would amount to
speculation and speculation has no place in a conclusion of
obviousness within the meaning of 35 U.S.C. 103.
Accordingly, we will not sustain the rejection of claims
1 and 3 through 10 under 35 U.S.C. 103.
We also will not sustain the rejection of claim 11 under
35 U.S.C. 103 because claim 11 depends from independent claim
1 and while the examiner relies on an additional reference to
Blaha for the limitations added by claim 11, Blaha does not
provide for the deficiencies of Ferrer and Joseph with regard
to the claimed step of “maintaining a method entity...”
Turning now to the rejection of claim 23 under 35 U.S.C.
103, this rejection relies on Ferrer and Burns.
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